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Sunday, August 30, 2009

In the first month of Lawffice Space, I posted an entry titled The Magic of Twitter. In short, the post explained that I announced my blog on Twitter to my then-17 followers and due to rebroadcasting ("RT" or "Retweeting" in Twitter parlance) by some people who saw my tweet the announcement eventually reached about 3350 people. At the time, I saw Twitter as a way to advertise my blog. Today I realize it is much more.

Earlier this month, I went on my honeymoon for a week or so and Lawffice Space had a guest blogger, Kristina Duncan (she prefers the term "blogsitter"). Three guesses how I found her. If you're not thinking, "Twitter, Twitter, and Twitter" you should be. I tweeted that Lawffice Space was going to be inactive for a couple weeks; she tweeted that she'd be happy to help; the rest is history. You can follow Kristina Duncan on Twitter: @legalninjakris. And oh by the way, if you read my first Twitter post, you'll see that she was also one of the people who Retweeted my original blog announcement!

Twitter has also been an invaluable source of learning for me. As an example, the other day Daniel Schwartz tweeted a link to his new blog entry about a Second Circuit public employee free speech case. I find that topic interesting and hadn't seen the case so the entry was educational. I also commented on the entry and Mr. Schwartz replied with a nice email. The email included information on a Connecticut law which I found educational as well. This is just an anecdote showing that Twitter facilitates learning and interaction. I could recount many similar examples. You can follow Daniel Schwartz on Twitter: @danielschwartz.

I hope I've adequately conveyed that Twitter is a networking tool that is not just a way to broadcast information, but a way to interact and learn. As a broadcasting tool, it's not too shabby though. Remember those 17 followers when I announced my blog? That's about 500 followers now. Twitter remains second only to Google in number of referrals to Lawffice Space. I've also added a TweetMeme button (at the top of new posts) that will allow readers to share Lawffice Space entries on Twitter with the click of a button.

Thursday, August 27, 2009

From town hall protests to prime time presidential broadcasts, the health care debate is in full swing. It's not just politicians and protesters weighing in on the matter but private employers as well. You've got health insurers, doctors, unions, you name it. One surprising source for health care proposals has been grocery stores.

Recently, Whole Foods CEO John Mackey offered up The Whole Foods Alternative to ObamaCare in the Wall Street Journal. The op-ed advocates largely free-market health care policy reforms. As this is not a policy blog (and certainly not a political blog) I will simply point out what Whole Foods is doing as an employer.

First, Whole Foods allows its "team members to vote on what benefits they most want the company to fund." Mackey also explains that Whole Foods pays 100% of the premiums on high-deductible health insurance plans. The piece inadvertently offered up a warning for employers: Be careful picking sides in a hotly contested policy debate! A boycott effort is underway and a Facebook group with more than 30,000 members has formed to protest Mackey's op-ed.

While Whole Foods focused on policy proposals, Safeway CEO Steven Burd focused on his company's own policies in a WSJ op-ed, How Safeway is Cutting Health Care Costs. This piece likewise advocated market-based solutions but in the form of employment practices (though it too is framed as a policy-advocation piece).

Safeway based its model off of automobile insurance. The basic premise is that there are "good" behaviors and "bad" behaviors. In auto-insurance its things such as tickets and accidents; in health insurance its things such as fitness and diet. The op-ed describes Safeway's plan in more detail but basically there's a base rate and employees get deductions for hitting certain targets.

The results? Safeway's health care costs have remained flat in the last four years and "that includes both the employee and the employer portion... while most American companies' costs have increased 38% over the same four years." Safeway's success has not been limited to money, Burd boasts that his workers are healthier than average and happy with their coverage. Happier and healthier workers are more productive and that's a win-win for everybody.

Tuesday, August 25, 2009

"[E]veryone knows that a juror's job is protected during her absence, right?"

If you didn't know (and are therefore, apparently nobody), the statute is 28 U.S.C.A. § 1875 which reads in part:

"No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee's jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States."

The opening line of this post comes from the D.C. District Court in Williams v. D.C., No. 07-505 (RMC)(Aug. 21, 2009).

Dr. LilliAnn Williams-Jackson, a guidance counselor at a D.C. public elementary school, sued the city, alleging she lost her position (she was "excessed") for missing work due to jury duty. Dr. Jackson was away from work for four months for a capital case.

The Court describes the case as a "close case of mixed motives" which means that jury duty may have been just one of multiple reasons Dr. Jackson lost her job (here, the school demonstrated a need to reduce its staff). In fact, the Court had "no doubt" that Dr. Jackson's jury duty was a motivating factor. The Court concluded, however, that "Dr. Jackson has not carried her burden to prove that her jury service 'was the but-for cause of the challenged adverse employment action.'"

Wait a second... where does that language come from? Yup, you guessed it (or read the title of this post): Gross v. FBL! See Lawffice Space summary of Gross. That case was significant in that it held mixed motive burden-shifting was never appropriate in Age Discrimination (ADEA) claims. Instead, plaintiffs must establish that age was the 'but-for' cause of an adverse employment action.

I, for one, assumed the holding in Gross would be limited to ADEA cases as the holding is quite a departure from the standards applied under the other discrimination statutes (ADA, Title VII). Apparently, at least in D.C. for the time being, it will be the standard in jury duty retaliation cases as well. Actually, based on the Court's reasoning, it will be the standard under any similar statute that doesn't expressly provide for "motivating factor" liability. This latest case just confirms the huge impact of Gross on employment law.

Sunday, August 23, 2009

I bet you thought I forgot! Between the media circus, the heated discussion in legal circles, and my own extensive blogging on the matter, I was essentially all Ricci-ed out. Now that I've had some time away from the subject, I am rededicated and proud to present the final installment: Ginsburg's Dissent.

First, I must note that Justice Ginsburg's opinion is by far the longest and contains a wide array of arguments. As this is a blog, I will necessarily present some arguments in a succinct manner that does not do the full argument justice. You are, of course, invited to read her full opinion to get the detailed version.

Disparity and Discrimination

Justice Ginsburg begins with a recounting of the history of discrimination in the firefighting profession. She specifically highlights the history of racial disparity in the New Haven Fire Department. Although racial disparities have largely been eliminated in lower ranks in New Haven, the leadership positions are still disproportionately white.

Ginsburg also recounts the judicial history of disparate impact claims culminating in Congress enacting the Civil Rights Act of 1991.

New Haven's Test was Flawed

Obviously, as it's the basis of the case, New Haven's exam yielded disproportionate results. Half of the Lieutenant candidates were black or Hispanic... none were eligible for promotion following the test (the Captain's test yielded less disparate but similar results). New Haven used a combination written/oral exam. Ginsburg repeatedly brings up the lack of a "performance" test. Further, some of the questions were irrelevant and disparities existed in access to the study materials.

The Majority's Test is Flawed

The majority held that New Haven could have declined to certify the test results following the disparate results only if they had a "strong basis in evidence" to believe they would be liable under a Title VII disparate impact claim. Ginsburg takes issue with the test itself which has little definition in judicial precedent.

She feels the test is not only ill-defined but also too high a hurdle. Such a hurdle places an impediment on future employers wishing to voluntarily comply with Title VII by choosing how best to tread the line between disparate impact and disparate treatment. Voluntary compliance is a goal of Title VII.

Justice Ginsburg would have allowed employers to engage in what the majority labels "disparate treatment" where an employer has "good cause" to believe it faced disparate impact liability (as opposed to the strong basis in evidence standard of the majority). I believe the heart of her opinion, in her own words, is:

“A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.”

New Haven Never had a Chance

Ginsburg takes issue with the majority granting summary judgment for the Plaintiffs. She feels that New Haven should have at least had an opportunity to satisfy the majority's newly announced "strong basis in evidence" test.

She then recounts the numerous flaws with the exam. Established Title VII law dictates that disparate statistics do not yield disparate impact liability where the test used was a "business necessity." Ginsburg refuses to accept that an “outmoded and exclusionary selection process qualified as a business necessity.”

Target: Alito

Justice Ginsburg seems to take particular exception to Justice Alito's concurring opinion in which he painted a picture of racial politics dictating New Haven's decision to reject the test results. Ginsburg argues that heated rhetoric was in plentiful supply from both sides of the debate. She also claims that political considerations, or “placating” a racial minority is not necessarily a Title VII violation. I'm not conveying her anger here, but read for yourself to get a feel for her tone.

I Dissent

Justice Ginsburg's closing line begins “I dissent . . . .” It notably does not include the word “respectfully.” Exclusion of the word “respectfully” is considered a subtle way for Supreme Court Justices to convey extreme displeasure with a majority opinion.

Thursday, August 20, 2009

Did you read Wuthering Heights in high school? Of course not! You read the Cliffs Notes... errr, was that just me? Anyway, there's new H1N1 Swine Flu guidance for employers this flu season. It was issued by HHS CDC and DHS and I was kind enough to read the whole thing (do you see what I do for you people?) and prepared the following Cliffs Notes (not actually affiliated in any way with Cliffs Notes) version.

Some people are "at higher risk for complications of influenza," including pregnant women and people over 65 – tell them they are particularly at risk and encourage them to take precautions.

Collaborate with other businesses to find policies and procedures that work.

Check with your state and local health officials regularly to stay informed of issues specific to your geographic location.

Add the Swine Flu widget to your web site! I already put one on Lawffice Space (over on the right); you can get yours here.

PLAN

Plan in advance how you will implement your H1N1 strategy, including monitoring absenteeism so you can spot a spike.

How will operations continue if there are heavy absences? Consider cross-training employees to cover for one another and identify essential functions that must be covered (you should really consider this even when there isn't a pandemic threat).

Establish work-from-home policies and make sure you have the IT infrastructure to support this option.

Have a plan for employees with children to handle early school dismissals (and encourage them to keep the kids out of the office).

The guidance includes suggestions for a more severe outbreak. It’s probably too soon to implement these but you may want to at least start thinking about how you might go about: Screening employees; utilizing alternative work environments; social distancing; and cancelling travel.

PREVENT

“During an influenza pandemic, all sick people should stay home and away from the workplace, hand washing and covering coughs and sneezes should be encouraged, and routine cleaning of commonly touched surfaces should be performed regularly.” (yes, that emphasis was theirs).

Sunday, August 16, 2009

The Department of Labor issued a press release announcing their new site - Disability.gov. I don't even know where to begin with this thing; it's a mammoth project. The site is billed as:

"comprehensive information about programs and services to better serve more than 50 million Americans with disabilities, their family members, veterans, employers, educators, caregivers and anyone interested in disability-related information."

I'll just note a few points of interest for Lawffice Space readers:

The site offers information organized by 10 different topics, including Employment and Civil Rights (each of which contains its own subsection on Laws and Regulations).

You can also obtain information by state (or U.S. territory), including my state of Pennsylvania.

I've barely scratched the surface of this thing and must admit that it's a little intimidating. Ultimately, a web site of this magnitude will be judged by the ease of navigation and the ability to keep users informed of the latest developments. The organization by topics and states makes it easy to find the information for which you're searching, and the RSS feeds and Twitter account make it a snap (more accurately, a click) to stay in the loop.

Friday, August 14, 2009

The Philadelphia Eagles signed Michael Vick to a one year contract yesterday. Even if you've never watched a football game in your life you've no doubt heard of Vick, best known for brutally torturing, killing, and fighting pit bulls.

The National Law Journal reports that Vick's return has generated "a lot of buzz in the employment law arena." Employment lawyers (including me, right now) are using the high-profile case as a reminder to employers to be cautious in both how they obtain criminal records and how they use that information.

In the NLJ article, Attorney H. Andrew Matzkin advises that employers can find out about prospective employee's criminal records using media reports or social media web sites like Facebook (to which I'll add LinkedIn, Twitter, and FriendFeed). If the information is not publicly accessible online then employers may proceed under the

"Fair Credit Reporting Act, which sets national standards for employment screening and allows companies to hire outside agencies to conduct credit checks and obtain criminal conviction records on current and prospective employees."

Employers must worry about more than just obtaining the information though, they must also be careful to use the information lawfully.

Two conflicting interests dominate the policy discussion regarding hiring individuals who have been convicted of crimes. First, employers may wish to keep criminals away from their business. Do you want someone convicted of robbing a convenience store running your convenience store cash register? There is also an interest in rehabilitating criminals and giving them a second chance, another opportunity to become productive members of society.

Some states have laws prohibiting how employers may use arrest records. As a Pennsylvania attorney I happen to know that Pennsylvania has a statute governing this very issue:

"(b) Use of information.--Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied."

18 Pa. C.S. § 9125. There is also a provision requiring employers to notify employees when a hiring decision is based on criminal history.

The Pennsylvania statute strikes a happy medium. It allows employers to choose for themselves if they want to grant second chances BUT the criminal history may only be considered to the extent it actually relates to the position for which the individual applied.

When it comes to acquiring and utilizing criminal records, as with seemingly everything in employment law, be careful to adhere to the federal and state (and local) laws. It's a mine field out there!

Wednesday, August 12, 2009

In 2004, the alternative rock band Modest Mouse released their hit album, Good News for People Who Love Bad News. It's one of those album titles I'll never forget no matter how rarely I hear the band. What's that got to do with employment? Hold on, I'm getting there.

At the end of last week, the Department of Labor released a report titled The Employment Situation - July 2009. The mainstream media has largely heralded the report as good news based in part on a decline in the unemployment rate. The rate dropped from 9.5% in June to 9.4% in July. That is great news! Right?

The news wasn't all great though as it turns out employers eliminated 247,000 jobs in July. Wait a second, how do you lose jobs and have a decrease in the unemployment rate? The secret is that the unemployment rate includes a seasonal adjustment and excludes what the report calls "Discouraged Workers."

Discouraged Workers are defined as:"persons not currently looking for work because they believe no jobs are available for them." Or as I define the term: People who think their job search is so hopeless, they've given up.

On page 19, Table A-12 includes a stat it labels U-4 defined as "Total unemployed plus discouraged workers, as a percent of the civilian labor force plus discouraged workers." When not seasonally adjusted this rate actually increased from 10.1% in June to 10.2% in July.

What stats do you prefer? Should we make seasonal adjustments? Should we stop counting those who have given up hope? That's really a judgment call. The fact remains, however, that more people were unemployed in July than in June. I'm hoping for positive signs in this down economy as much as anyone but I'm afraid this may just be "Good News for People Who Love Bad News" (I told you I'd work it in!).

Monday, August 10, 2009

The proverb has found its way into the employment policy arena in recent months due to the outbreak of the H1N1 Virus (aka "the Swine Flu").

For example, numerous Universities have sent out letters to their communities, including a Letter from Howard President Ribeau. These letters generally include language like the following from the Howard letter:

Cover your nose and mouth when you cough or sneeze.

Wash your hands often with soap and water, especially after you cough or sneeze. While alcohol-based hand cleaners are also effective, they should not replace hand washing.

Avoid touching your eyes, nose or mouth. Germs spread that way.

I will also note that my alma mater, George Mason University School of Law, had hand-sanitizing stations placed throughout the school when I visited a few weeks ago.

I just finished a cruise last week on which Royal Caribbean issued a daily notice asking the same things from their passengers (and I assume their employees). A couple I met in Juneau said Celebrity was also making a huge deal of H1N1 and ensuring that everyone washed their hands.

"During a pandemic, may an employer require its employees to adopt infection control practices?

Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA."

Universities, cruise lines, and the EEOC agree... washing your hands helps stop the H1N1 virus. The question I have is, "Why does it take the threat of a pandemic to get people to wash their hands!?"

This just in: employees are much more likely to catch something other than H1N1. I don't know about you but I don't want any illness, swine or otherwise. I hope this new hand-washing, no-eye-rubbing, covering-your-nose-and-mouth-when-you-sneeze craze catches on for the rest of time! Workplace health should always be a concern and not a special pandemic precaution.

Sunday, August 9, 2009

Yesterday, I stepped off a plane in State College, Pennsylvania, finishing a nine-day honeymoon that included a trip to Seattle and an Alaskan cruise. The trip was fantastic but I was mostly disconnected from the Internet while I was gone. I found it hard to justify more than a few moments online given that it was my honeymoon and I had a new wife with whom to celebrate. Additionally, it cost $.55/minute (though it's pretty impressive that you can get access at all in the Pacific Ocean)!

So, what happened the past couple weeks? We have a brand new Supreme Court Justice, Sonia Sotomayor, sworn in on Saturday. The Employment Non-Discrimination Act (ENDA), about which I blogged previously (It's the ENDA the World as we Know It), was introduced in the Senate. Most importantly, however, Lawffice Space had two fabulous guest posts from guest blogger Kristina Duncan:

Thanks Kristina for blogsitting while I was gone! After a couple hectic weeks my schedule should be back to normal now. I'm back to sitting on the couch, writing a Lawffice Space entry while being subjected to awful television from my now-wife (it's Sex and the City: The Movie tonight). Lawffice Space will now be back to its normal schedule... whatever that means.

Friday, August 7, 2009

I’m referring to last month’s U.S. House bill dubbed, “Equal Employment for All Act”. Employment law specialists will already be familiar with its language.

Here is a short summary, if you have not yet seen the bill.

This bill, H.R. 3149, proposes to amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions. In other words, if you apply for a job, credit history could no longer be part of a hiring decision. If you are already employed, credit history could not be used against you in any adverse employment action.

The bill carves out exceptions for positions with national security or FDIC clearance requirements, positions with state or local government that require such reports, certain positions at financial institutions, and as otherwise required by law.

The bill also contains an interesting clause that says, in effect, that applicants and employees cannot consent to or authorize use of credit reports (§2(b)(2)).

The bill strikes me as a significant change in this aspect of employment law. I’d be interested to see legal opinion on this. I’m impressed for two reasons. First, when one sees a proposed law in this stark form, “You have been doing X, and now you shall no longer do X”, one is on pretty solid ground inferring the existence of horror stories, many of which have likely resulted in court proceedings.

Second, when the proposed law eliminates any ability to authorize use, it’s a good bet that coercion resulting from unequal power positions lurks behind many of the horror stories.

I would be interested to hear what Lawffice Space readers have to say, both about the situations, and about the significant case law associated with this area of employment practice.

Thursday, August 6, 2009

I appreciate the opportunity to chat with my colleagues in employment law.

Under the current economic conditions, with the employment picture still deteriorating, I thought you might find it useful to reflect for a moment on employment and efficiency in your firms. I wouldn’t be surprised to hear that your workload in increasing as employers find creative ways to discharge employees, resulting in legal action in certain circumstances.

Looking at your practice from my angle as a virtual paralegal, perhaps we “virtuals” are a source of efficiency and cost management that you may not have considered previously. As the costs of both layoff and hiring in law firms come to the fore in difficult times, well-managed use of virtual paralegals can be a source of powerful cost saving that can go right to your firm’s bottom line.

For example, one headache a firm faces is that of estimating staffing requirements accurately. Underestimate, and you could miss business opportunities, overshoot, and your costs jump and profit suffers. Virtuals can help smooth the load because they can be brought aboard quickly, are well-trained, and are on your clock only for assigned tasks. This is why the cost management potential is so great.

For attorneys in smaller firms, or in solo practice, staffing management takes a different form. You may have more work, but you don’t want to commit to the fully-loaded cost of another employee. There is an answer for that. Or the sole practitioner may have serious need for more help, but an in-house paralegal doesn’t pencil out. There is an answer for that, also.

I think the primary payoff here is that, in these troubled times, we in the legal profession can work together to increase firm efficiency, resulting in an improved bottom line, and savings for clients. Effective use of virtual support can contribute significantly to attaining these objectives.

Post comments on your concerns about what I’ve said here. I’ll be happy to answer them.

Directories and Profiles

Lawffice Space - Pennsylvania and Federal Labor & Employment Law Blog

Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.